Why Some Women Don't Actually Have Privacy Rights

A law professor explores the reasons why women who need government assistance are forced to divulge intimate details of their lives.

One day, when Maisha Joefield was in the bathroom, her 5-year-old wandered off to her grandmother’s apartmentacross the street.

For this, Joefield was incarcerated and charged with endangerment; Her daughter was taken away from her briefly, and for up to a year, she endured intrusive visits from social workers. “They asked me if I beat her,” Joefield toldThe New York Times. “They’re putting me in this box of bad mothers. It’s a slap in your face to have someone tell you what you can and cannot do with a child that you brought into this world.”

The incident illustrates what advocates have dubbed “Jane Crow,”—the practice of punishing poor mothers much in the same manner black families have been criminalized in what scholar Michelle Alexander calls “The New Jim Crow.”

In her new book, The Poverty of Privacy Rights, Boston University law professor Khiara M. Bridges tackles the wider phenomenon underlying “Jane Crow” practices. She argues that poor women in America simply do not have privacy rights. They do not have a choice but to let the government collect private information about their reproductive and sexual choices, and physically intrude into the private spaces where they raise their kids. CityLab spoke to Bridges recently about these intrusions imposed on women who need government assistance.

In what ways do low-income pregnant women and mothers not have privacy rights?

This book is actually a continuation of my first book, for which I spent 18 months conducting ethnographic field work in the obstetrics clinic of a large public hospital in New York City. It was really remarkable for me to see just how thorough the government’s occupation of poor, pregnant women's lives is.

Poor women would find themselves in this space seeking Medicaid or assisted prenatal care because they were really interested in having healthy pregnancies and giving birth to healthy children. But in exchange for that benefit, everything about their lives is opened up for surveillance. So they have to answer very intrusive questions about their sexual past, how they make their money, and who they're living with, and about their contact with regulated drugs or alcohol. I just can't imagine a privately insured woman, with some degree of class privilege, having to sit through this in exchange for her health care.

We think it’s only men who are being stopped and frisked, patted down for no reason, stopped while driving, walking, standing outside, or breathing. But it's actually everybody.

The reality is that if you talk to health care providers and public health policy people, they'll say, “Oh, these questions are really good for getting an idea of the context in which women live so that health care professionals can provide the most appropriate care.” But the thing is: privately insured women have the option of answering the question or saying, "You know, I'd rather not discuss this. I'd just want to get the the fetal heartbeat checked."

But if [a woman getting government assistance] declines to submit to this battery of questions, which is a condition of prenatal care, she's under surveillance. She will have social workers following her around for the rest of her pregnancy. She's potentially going to have a hard time gaining custody of the child. At the hospital where I did my research, the hospital would keep the baby "until the air was cleared." So basically, an open Child Protective Services investigation would be the result of declining to open your life to government surveillance.

You make a case that it’s not just that low-income women have traded in their privacy rights for state benefits, but that they didn’t have these rights in the first place. Could you elaborate on that?

What this book does is it makes legal arguments about the nature of privacy rights in the present moment. It argues against the idea that that poor mothers have privacy before they actually accept the benefits, or that they will retain privacy—like wealthy women— if they don't take government benefits. That's just not the reality.

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The reality of it is that indigent mothers have a very hard time making ends meet. They cannot provide food, housing, and medical care for themselves and their children. All of those things can constitute child neglect and maltreatment in the present system. It's all justification for child protective services coming in to investigate and protect children. I call it: the rock and the hard place. If you accept governmental benefits, the government can occupy your life because it just requires that as a condition of governmental aid. And if you don't accept governmental benefits— you're indigent—you're going to have government occupation of your life by virtue of Child Protective Services.

So, it's a false choice.

Right. And so, in the book, I make this argument about the disenfranchisement of poor mothers: they just don't have privacy rights. [But they should.]

And that extends, in some ways, to all poor people, right?

The physical space in which poor people live their lives are these neighborhoods that are heavily regulated—there’s a heavy police presence in these neighborhoods.

We hear about this all the time, but don't connect it to poor mothers. We think it’s only men who are being stopped and frisked, patted down for no reason, stopped while driving, walking, standing outside, or breathing. But it's actually everybody. Everyone in poor neighborhoods is under this police gaze. No one has the ability to keep the police from initiating contact. The lack of privacy that I'm talking about in the book happens not just by virtue of the public benefits system but also by virtue of the criminal justice system.

What is your response to the argument that the well-being of the children overrides the privacy rights of poor mothers?

I asked people in the hospital why it is that poor women are subjected to this treatment. And they said that it was because they're at “social risk.” And what puts them at social risk is their poverty. Their poverty is the justification for treatment that is entirely at odds with the way that we treat middle class and upper middle class folks.

If poor mothers are at increased risk of not being able to feed their kids, instead of coercing them out of motherhood, instead of monitoring the values that they're imparting to their children, maybe we should just help them put food on the table.

The social risk is the expectation or this increase in statistical likelihood that a poor person is going to abuse or neglect their child. And so these questions and intrusions and these Child Protective Services investigations—all of these are for the purpose of protecting children from abuse and/or neglect.

Now, abuse is different from neglect. If poor mothers are at an increased risk for neglecting their children because of their indigence, what we ought to do as a society is help them meet their children's basic needs, right? If poor mothers are at increased risk of not being able to feed their kids, instead of coercing them out of motherhood, instead of monitoring the values that they're imparting to their children, maybe we should just help them put food on the table. And the same thing with housing: let's provide for better housing as opposed to getting a rundown of all the sexual partners that they’ve had in the last five years. That seems like a better way to solve a problem—one that is more consistent with respecting folks' dignity and humanity.

The other response I would have to that argument is if we really think that doing this survey of folks’ sexual history, history with intimate violence, mental illness, homelessness, job histories—if we really think that doing these surveys actually helps us protect children from abuse and neglect—then we wouldn't just reserve that for poor people. We would be asking these questions of everybody—rich or poor, man or woman. And yet, we have no law mandating that for wealthier people. We are ignoring children of more affluent folks.

All that makes me feel a little bit cynical about the idea that these systems are in place in order to protect children from neglect. There's something a little bit disingenuous about that argument.

You identify one key assumption that underlies these interactions between the government and the poor. Can you talk about that?

That's the simple idea that people are poor because there's something wrong with them. It's an individualistic explanation of poverty as opposed to structural explanations of poverty. The latter would explain indigence in terms of large scale forces. The fact that the economy doesn't contain as many middle-skill middle wage jobs—that's a structural cause. We can also explain poverty in terms of mass incarceration. Why have we decided to solve all these social problems—drug use, drug abuse, drug distribution cells—with jails? We also can talk about sexism—the fact that women are just paid less per dollar than their male counterparts.

The “moral construction” of poverty rejects all of the structural explanations and embraces individualistic explanations. It says that people are poor because they're lazy, work averse, criminally inclined, or sexually promiscuous. The datasuggests that, in this country, we largely accept the moral construction of poverty. And that is reflected in our laws and in the way that we treat poor mothers. We have bureaucratic apparatuses and interpretations of the Constitution that would allow people [perceived to be] morally, behaviorally flawed to be surveilled at all times.

What role does race play in this apparatus and these interpretations?

Race is hugely important. If we look at the numbers, there are more white people who are poor in this country than people of color. And that's a reflection of the fact that there are more white people in this country. Of course, people of color are disproportionately represented among the poor. That contributes to our vision and our image of who the poor person is, and who needs public benefits, who is going to be the subject of the Child Protective Services investigation, and who's going to be policed. So the image that we have in our in our cultural discursive mind is a person of color. It's a black person or a Latinx person.

We have racial discourses that have reinforced that image since time immemorial—since the days of chattel slavery—which said that black people were just lazy. Slavery was defended, in some part, by the argument that black people are just lazy and needed a good master to help them be productive. The idea that black women could not be raped by law was a function of the idea that black women were just sexually available. These ideas about black deviance, sexual promiscuity, criminal behavior are old—and they haven't gone anywhere.

They go a long way towards explaining why we, one, embrace the moral construction of poverty in this country; and two, why we are satisfied with a system that runs roughshod over the privacy rights of the poor. We know what these systems are doing. We know that they're incredibly punitive. We know that they are incredibly invasive. We know that people are denied dignity and their humanity by virtue of the contact with this system, but we're satisfied with them. A part of that is because we know these systems are meant for poor people of color. And we are comfortable with that.

What would it take for laws to change so that all women have the right to privacy?

As lawyers, we tend to think, “Alright, we just need a good argument.” That misses the point. Overthrowing discourse and changing cultural attitudes about why people are poor—that’s the answer.

I think the Great Recession had a lot of potential for changing attitudes about poverty because a lot of “regular people" found themselves poor. But that didn't stick. I actually think that goes back to the race question. The Rust Belt, for example, is now anxious about their economic position and they recognize: "I just didn't get up in the morning, go to the coal mine, and apply for that job but rather because that job isn't there anymore." But then of course they blame it on being shipped overseas, because of Obama's bad policies.

Right, and immigrants.

That’s why I'm not so hopeful—there's a very racialized understanding of these phenomena. The problems that people in the Rust Belt are having are the exact same problems that people in “the hood” have been having for decades. But they don't recognize the similarity. The racial hierarchy in the country is going to make it really, really hard for cultural change.

About the Author

Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.